Lake Buena Vista, Florida--
The U.S. Department of Justice has announced its opposition to legislation sponsored by U.S. Sen. Lisa Murkowski (R.-Alaska) that would require federal prosecutors to turn over more evidence to criminal defendants than federal law does currently. The legal term for this process of sharing evidence with the other side in litigation is "discovery."
My views on the appropriate scope of criminal discovery are strongly shaped by my experiences as a prosecutor and defense attorney in the Alaska state court system, where an open-file policy obtains. Except for very narrow exceptions--such as strategy memos written by the prosecutor--in a criminal case in the Alaska state court system, the prosecutor hands over the contents of the case file to the defense.
This broad discovery in the Alaska state courts stands in stark contrast to the rules for discovery in federal criminal cases, which are by comparison much more limited as well as riddled with exceptions.
Prosecutors do well in Alaska state courts despite the broader discovery rules that give more evidence to the defense, and it strikes me that the federal government could also live under rules fairly similar to the relatively broad discovery rules that are the law in Alaska.
The Justice Department does not agree. While characterizing the Ted Stevens prosecution as "deeply flawed," the Justice Department contends that the current federal discovery system works and should not be changed by statute.
The Anchorage Daily News reports that "The Justice Department said it was worried that [broader] disclosures could put victims and witnesses in danger, interfere with other investigations and pose national security risks."
As to threats to victims, Alaska law already provides protections for victims in the discovery process. Concerns about liberal discovery threatening other investigations or national security could be alleviated by allowing prosecutors to seek permission from the court to withhold information in specific circumstances.